Merck & Co., Inc. today said a California state court made the right decision in denying plaintiffs' request to certify a class of California consumers and insurers seeking reimbursement for VIOXX costs.
Applying California law, Judge Victoria G. Chaney of the Los Angeles Superior Court said in her ruling that trying plaintiffs' claims would "require an examination of each proposed class member's medical needs and history. Plaintiffs adduce no evidence indicating the inquiry can be conducted on a classwide basis."
"The court rightly agreed this was not an appropriate case to proceed as a class action," said Ted Mayer of Hughes, Hubbard & Reed, outside counsel for Merck.
Merck had argued that proceeding with plaintiffs' claims on a classwide basis would be unfair because plaintiff's circumstances varied. For example, a jury would need to consider at trial whether each consumer plaintiff would have continued taking VIOXX if more information had been available at the time, and if not, how much an alternative drug would have cost.
Merck also argued that individual insurer plaintiffs considered different information and reached different conclusions when making decisions about including VIOXX in their plan coverage.
"We believe that Merck's communications and representations about VIOXX's efficacy and safety were proper, accurate and timely," said Mayer.
Today's court decision only addresses consumer and insurer economic loss claims in California.
Three courts have previously denied certification to plaintiffs seeking VIOXX class action status. In March 2009, New Jersey Superior Court Judge Carol E. Higbee denied the certification of a class of plaintiffs seeking reimbursement for out-out-pocket VIOXX costs saying certification would be "unfair" and "unmanageable." In 2007, the New Jersey Supreme Court ruled in Engineers v. Merck that certification of a nationwide class of insurers who paid for VIOXX was not appropriate because common questions of fact did not predominate and a class action was not superior to other available mechanisms for resolving their claims. In addition, Federal District Court Judge Eldon E. Fallon, who oversees the VIOXX multidistrict litigation proceeding, denied certification of a nationwide class of VIOXX users asserting personal injuries as a result of their use of the drug.
In November 2007, Merck entered into an agreement to resolve state and federal myocardial infarction and ischemic stroke personal injury claims filed or tolled by Nov. 9, 2007. More than 99 percent of all eligible personal injury claimants enrolled in the program, and the program is proceeding as scheduled.
Prior to the settlement, Merck had won the large majority of personal injury cases that went to trial in the United States and thousands of lawsuits had been dismissed.
Merck & Co., Inc. is a global research-driven pharmaceutical company dedicated to putting patients first. Established in 1891, Merck currently discovers, develops, manufactures and markets vaccines and medicines to address unmet medical needs. The Company devotes extensive efforts to increase access to medicines through far-reaching programs that not only donate Merck medicines but help deliver them to the people who need them. Merck also publishes unbiased health information as a not-for-profit service. For more information, visit www.merck.com.